Can Trump actually stage a coup and stay in
office for a second term?
The president refuses to acknowledge Biden’s win, but
experts say there is no constitutional path forward for him to remain in the
White House
Sam Levine
in New York
Wed 18 Nov
2020 10.32 GMTLast modified on Wed 18 Nov 2020 10.35 GMT
Joe Biden
won the presidential election, a fact that Donald Trump and other Republicans
refuse to acknowledge.
There are
worries the president and other Republicans will make every effort to stay in
power. “There will be a smooth transition to a second Trump administration,”
Mike Pompeo, the secretary of state, said last week. William Barr, the attorney
general, has also authorized federal prosecutors to begin to investigate
election irregularities, a move that prompted the head of the justice
department’s election crimes unit to step down from his position and move to
another role. On Tuesday, Trump fired Christopher Krebs, the director of the
federal agency that vouched for the reliability of the 2020 election and had
pushed back on the president’s baseless claims of voter fraud.
Yet,
despite all of Trump’s machinations, it is extremely unlikely he can find a way
to stay in power or stage a coup. Here’s an explanation of why:
Trump
refuses to accept that Joe Biden won the presidential election. Is there a
constitutional path for him to stage a coup and stay in office for another
term?
Not really.
The electoral college meets on 14 December to cast its vote for president and
nearly every state uses the statewide popular vote to allocate its electors.
Biden is projected to win far more than the 270 electoral votes he needs to
become president. His victory doesn’t hinge on one state and he has probably
insurmountable leads in Michigan, Nevada, Wisconsin, Pennsylvania and Arizona.
There is a
long-shot legal theory, floated by Republicans before the election, that
Republican-friendly legislatures in places such as Michigan, Wisconsin and
Pennsylvania could ignore the popular vote in their states and appoint their
own electors. Federal law allows legislatures to do this if states have “failed
to make a choice” by the day the electoral college meets. But there is no
evidence of systemic fraud of wrongdoing in any state and Biden’s commanding
margins in these places make it clear that the states have in fact made a
choice.
“If the
country continues to follow the rule of law, I see no plausible constitutional
path forward for Trump to remain as president barring new evidence of some
massive failure of the election system in multiple states,” Richard Hasen, a
law professor at the University of California, Irvine, who specializes in
elections, wrote in an email. “It would be a naked, antidemocratic power grab
to try to use state legislatures to get around the voters’ choice and I don’t
expect it to happen.”
For
lawmakers in a single state to choose to override the clear will of its voters
this way would be extraordinary and probably cause a huge outcry. For Trump to
win the electoral college, several states would have to take this extraordinary
step, a move that would cause extreme backlash and a real crisis of democracy
throughout the country.
“There’s a
strange fascination with various imagined dark scenarios, perhaps involving
renegade state legislatures, but this is more dystopian fiction than anything
likely to happen,” said Richard Pildes, a law professor at New York University.
“The irony, or tragedy, is that we managed to conduct an extremely smooth
election, with record turnout, under exceptionally difficult circumstances –
and yet, a significant portion of the president’s supporters are now convinced
that the process was flawed.”
Is there
any indication Republicans in these important states are going to go along with
this?
Shortly
after election day, Jake Corman, the top Republican in the Pennsylvania state
senate, indicated his party would “follow the law” in Pennsylvania, which
requires awarding electors to the winner of the popular vote. In an October
op-ed, Corman said the state legislature “does not have and will not have a
hand in choosing the state’s presidential electors or in deciding the outcome
of the presidential election”.
Last week,
Republicans in the Pennsylvania legislature said they wanted to investigate
allegations of voter fraud. There’s no evidence of widespread malfeasance in
the state, but the move is alarming because it could be the beginning of an
effort to undermine the popular vote results in the state. But in a major blow
to the president’s legal efforts, the state’s supreme court ruled that
Philadelphia election officials did not improperly block Trump’s campaign from
observing the counting of mail-in ballots.
The
Republican-led legislature in Michigan is also investigating the election, as
are Republicans in Wisconsin. There’s no evidence of widespread wrongdoing in
either place.
Is this
related in any way to the lawsuits Trump is filing?
Trump’s
campaign has filed a slew of legally dubious suits since election day. The
purpose of these suits appears not to be to actually overturn the election
results, but to try to create uncertainty and draw out the counting process.
Each state
has its own deadlines for certifying election results that are then used to
allocate its electoral college votes. In at least two states, Pennsylvania and
Michigan, Trump’s campaign is seeking to block officials from certifying
results.
That
certification timeline is important because federal law says that as long as
election results are finalized by 8 December this year, the result is
“conclusive”. That provides a safeguard against Congress, which is responsible
for counting the electoral college votes, from second-guessing election
results. By dragging out the process, the Trump campaign may be seeking to blow
past that deadline and create more wiggle room to second-guess the results.
Even if
that is the Trump campaign’s hope, courts are unlikely to step in, Pildes said.
“States are
going to start certifying their vote totals beginning in less than 10 days, and
there is no basis in the claims made thus far for the courts to stop that
process,” he said.
Say the
worst-case scenario comes to fruition and Republican-led legislatures override
the will of the people in several states. Is there any safeguard to stop Trump?
Yes.
Michigan, Wisconsin, Pennsylvania and Nevada all have Democratic governors who
would refuse to approve a set of Trump electors with the popular vote clearly
showing Biden winning their state. Instead, they would submit the electors
Biden is entitled to as the winner of the popular vote.
It would
then fall to Congress, which is charged with counting the votes from the
electoral college, to decide what to do. The law that outlines the process for
how Congress should handle a dispute in electors from a state is extremely
confusing, but experts believe the slate backed by a state’s governor is the
legally sound one. There is a rival theory that the president of the Senate,
Mike Pence, could have control over the process. A dispute over electors
between the US House and Senate is a worst-case scenario and the US supreme
court would probably be asked to step in.
Regardless
of however long a dispute is, the constitution does set one final deadline.
Even if counting is ongoing, the president and vice-president’s terms both end
at noon on 20 January. At that point if there isn’t a final result in the race,
the speaker of the House – probably Nancy Pelosi – would become the acting
president.
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